High Court decisions could & should trigger reforms

Andrew L. Urban.

 If successful, will upcoming High Court appeals prompt reform, including a much needed Criminal Cases Review Commission (CCRC) – as they should? 

When the High Court overturned the wrongful and controversial conviction of Cardinal Pell 7 – 0 in April 2020, (upheld earlier by Victoria’s appeal court) it may well have alerted the legal fraternity to urgent reforms in Australia’s justice system, including the need for a CCRC.

“We are confident that the two appeals currently seeking Special Leave to appeal to the High Court (Derek Bromley in South Australia, and Susan Neill-Fraser in Tasmania) will be successful and provide the occasion for us to contemplate the significance of the egregious errors which have occurred in both of those cases,” write Dr Robert Moles and Bibi Sangha, Networked Knowledge and Adjunct Associate Professors, College of Business Government and Law, Flinders University, in a new paper.

Robert Xie in NSW is also preparing to seek leave to appeal to the High Court, challenging his conviction for the murder of five members of his wife’s family in 2009, a conviction that rests on (flimsy) circumstantial evidence, and in defiance of his claimed alibi. The High Court, Xie hopes, will use the language in its Pell decision: a jury acting rationally ought to have entertained a reasonable doubt about the guilt of the accused. This major crime took four trials and eight years to end up with what is arguably a wrongful conviction, leaving the real killers free.

The initiative to set up the CCRC in the UK , Sangha and Moles point out “arose from the overturning of the IRA bombing convictions in the early 1990s – the Birmingham Six, the Guildford Four, the Maguire Seven and the Judith Ward case. The convictions had been obtained by what the appeal court described as false and fraudulent evidence.

“The scientists at trial had presented the results of preliminary screening tests (for nitro-glycerine) as if they were confirmatory. The appeal court, after 20 years, was informed that substances such as shoe polish, the nitrites in common soaps and the plastic backing on playing cards would also have produced positive results to the screening test. This error was very similar to that which occurred in the case of Susan Neill-Fraser in Tasmania, where the results of preliminary screening tests for blood were presented as if they were confirmatory. Of course, with the added experience from the UK, and also from other Australian and Canadian cases, it is something which should not have occurred. That error alone would warrant her conviction being set aside.”

A CCRC would not by itself avoid such miscarriages of justice, but it would make them easier to correct. Such a body may also add its voice to the calls for broad based reforms in the criminal justice system – many of which we have outlined. For one thing, an effectively structured CCRC system across the Australian jurisdictions would enable those who are dismissed in the appeals court to seek redress via the CCRC, not be faced with the High Court as the only option. The High Court would no doubt be grateful for some relief of its workload, too …

Former High Court judge Michael Kirby is on the record as an enthusiastic supporter of reforms, notably a CCRC structure.

And just a couple of days ago, Telegraph journalist Peter Gleeson called for reform: “Australia’s criminal justice system is broken and it needs massive structural reform. It’s time for the High Court to convene a national summit on how we fix a system that has not fundamentally changed since the Magna Carta in the 13th century.”

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6 Responses to High Court decisions could & should trigger reforms

  1. Owen allen says:

    The Prime Minister of Australia and Minister of Defence should think very hard about what they say and do internationally, otherwise they might find submarines sailing up the Derwent to Free Sue Neil_Fraser and make a few arrests, a goodwill gesture by the USA who knows what is going on in Tasmania, and or both President Xi Jinping or President Putin, sometimes domestic help needs to come from overseas. We know that is a fact, and if factions domestically bully citizens abusing the law and legal process, it goes down.

    • andrew says:

      It seems you are developing a movie script, Owen….art imitating life, perhaps?

      • Owen allen says:

        What ever comes into my head at any given time Andrew.
        It might be prayer because we certainly need help at this time, but a movie, good idea after the book.

        • Owen allen says:

          And to add to that Andrew, I am willing to dance Russian Roulette with the PM or Minister of Defence.
          I have lost 31 years of life in the fight for justice in Tasmania. But I haved gained 31 years of experience and coming out. I knew who I was sitting in a single seater ag aircraft, but I didn’t have the characteristics, of say, the gungho Flying Tigers who were heros in aviation helping China against the invaders at the time WW2. My life is being waisted, except I am in the war with you and your cronies for justice and I am more than happy with that. I would rather be here working with you, than in an ag plane, and thats why I gave it up,but it wasn’t paying but I could have stayed just flying. My problem is I need g force and adrenaline. I just love the spin, no g but spinning towards the ground vertically is something I love. Tasmania ruined my flying career, and only the wealthy can spend money on competition aerobatics. Send those subs up the Derwent friends.
          I want to fly a Yak 52 and Aerovodochody L39 Albotross.

  2. Brian Johnston says:

    Four trials and still guilty. Why? Answer, it has nothing to do with the truth.
    It is all about tactics. The police decide who is guilty, it is as simple as that, they then set about gaoling the guilty.
    A point of interest is do the police believe!! Sue Neill-Fraser & Robert Xie are guilty.
    The state of Montana has The Innocence Project.

    One of the most amazing books I have read is by William Pepper who was Martin Luther King’s lawyer. He said “The only way I can help King is to solve the case” and he did. Fascinating read. Orders To Kill by William F Pepper. Possibly the best book on true crime. Includes the links of the throw down gun. You got it, there were two guns. There were two white mustangs.
    James Earl Ray did not shoot King.

    The only way to help Sue & Xie and the others is to solve the case.
    We know who killed Bob, the rest should be easy. I do not know what has gone wrong. In the case of Xie if it wasn’t Robert who killed the family, then who did. The defence will have to solve the case. Someone knows something. Private investigators with police and gang connections are a good place to start.

    When Shapiro defended Simpson he did not know whether Simpson was guilty or innocent and I believe he never asked. Shapiro cleared Simpson of guilt. How? By tactics and strategy. Shapiro forced the prosecution to prove their case. Circumstantial evidence did not help the prosecution. Shapiro drove hard and won.
    My view is that Simpson was innocent and the glove did not fit. Nicole bought two pairs of gloves. One for Simpson and a smaller pair for their son. Obviously the smaller glove could not fit Simpson. I am not saying the son is guilty.
    Shapiro did not set out to prove his client innocent. He drove hard and forced the prosecution to prove their case. Tactics won the day. Shapiro’s book is worth reading.

    I am aware the King murder was a planned assassination and the local cases are murder. The same method of tactics should apply.

  3. Owen Michael Allen says:

    Excellent work Andrew.

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